Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

The Volokh Conspiracy blog recently highlighted a case of interest to anyone who deals with manuscripts. Rosenberg v Zimet concerned the ownership of a version of "Schindler's List," the list of essential employees used by Oskar Schindler to protect many of them from transportation to death camps. One copy of the list is physcially housed in the Holocaust Museum Yad Vashem in Israel, though copyright in the document belongs to Marta Rosenberg, the heir to Schindler's widow. A second copy ended up in the hands of one of Schindler's employees, who eventually gave it to Thomas Keneally, the author of the book on which the Schindler's List movie is based. That copy was included in the Keneally papers purchased by the State Library of New South Wales. (It apparently is not, as the lawsuit suggests, the copy that is "the object of this lawsuit.") A third copy belonged to Schindler's accountant and is now for sale from M.I.T. Memorablia. The lawsuit was an attempt by the copyright owner, Marta Rosenberg, to prevent the sale of the document.

There are two elements in the case that make this of interest to manuscript curators. First, the court opens with a discussion of the common law copyrights that might be present in the document. Eugene Volokh points out - correctly, I believe - that the court got this wrong. I can't think of any common law copyright in the document that was not pre-empted by bringing unpublished items under Federal protection in the 1976 Copyright Act.

I was interested to see, however, that the Court did cite Pushman and its progeny as far as copyright transfer is concerned. I thought I might be the only person who still remembered Pushman and think that it may have some relevance. The Court seemed to suggest that if there had been a bill of sale from the copyright owner for the material, and if there was no reservation of rights, then copyright in manuscript items can transfer with the physical object. It is possible that some repositories may have unknowingly acquired copyrights when they acquired physical title to unpublished works.

Second, Volokh concludes that in spite of the Court's misunderstanding regarding common law copyrights, "the transfer of the list is indeed permissible." This would seem like a no-brainer; thanks to the "first sale" doctrine embodied in Section 109, one does not need the permission of the copyright owner to sell a physical copy of the work. Or so it seemed until the Supreme Court recently split in Omega Watch v. Costco , about which I wrote earlier. In that case, the Appeals Court concluded that unless a sale in the U.S. is authorized by the copyright owner, first sale rights do not apply. ("[Section 109] applies to copies made abroad only if the copies have been sold in the United States by the copyright owner or with its authority.”) In this case, the copyright owner never apparently authorized the sale of copies of the list in the U.S., and so M.I.T. Memorablia's sale of the copy would seem to be no more legal than Costco's attempt to sell gray-market watches.

Costco may not be a total disaster for libraries. Kenny Crews has a useful post on how its implications may not be terrible for libraries. And even in this case, it might be that a court would conclude that because of Section 104(a), unpublished works created abroad are "lawfully made under this title," as required by Section 109 (even though U.S. copyright law is not to supposed to have extraterritorial application). Alternatively, the Court could conclude that the compilation of a list of names does not have enough originality to warrant copyright protection, and hence Costco would not apply. But it just highlights for me the uncertainty we now face when dealing with foreign materials. Let's hope that Congress fixes this soon.

Jan 5, 2011 - Introduced in House. This is the original text of the bill as it was written by its sponsor and submitted to the House for consideration. This is the latest version of the bill currently available on GovTrack.
HR 67 IH
112th CONGRESS
1st Session
H. R. 67
To extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 29, 2012.
IN THE HOUSE OF REPRESENTATIVES
January 5, 2011
Mr. ROGERS of Michigan introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Select Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To extend expiring provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until February 29, 2012.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. EXTENSION OF SUNSETS.
(a) USA PATRIOT Improvement and Reauthorization Act of 2005- Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 (Public Law 109-177; 50 U.S.C. 1805 note, 50 U.S.C. 1861 note, and 50 U.S.C. 1862 note) is amended by striking ‘February 28, 2011’ and inserting ‘February 29, 2012’.
(b) Intelligence Reform and Terrorism Prevention Act of 2004- Section 6001(b)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458; 118 Stat. 3742; 50 U.S.C. 1801 note) is amended by striking ‘February 28, 2011’ and inserting ‘February 29, 2012’.

I recently toured the Internet Archive, and saw a future for ebook library patrons far superior to any I’ve seen or imagined to date. It seems that libraries have a choice: continue pouring money down a commercial vendor sinkhole, getting a stash of really hard-to-use ebooks, or invest some of those funds into a library-friendly model that promotes copyright, privacy and disability access rights.

Some years ago, a colleague complained to me that a certain librarian was responsible for the stranglehold license agreements that libraries have with vendors of electronic journals. While it’s hard for me to believe that a single librarian is responsible for the mess we’re in there, it’s time we don’t repeat the mistakes of the past. Is there a way out? Is there a way around the stranglehold licenses for the emerging, rich content field of ebooks? And what about reader privacy? Is all the hard work put into protecting reader privacy via state laws simply trashed by sending users off to commercial third parties?

I couldn’t see a way out. That is, until I saw what the Internet Archive is doing, and what it could be doing if more libraries sign on.

The Internet Archive has a new Digital Lending Library. Only four libraries have signed on so far, notably the Boston Public Library which is leading the way.

Why should libraries sign up for this, and now? Because we need a new model for library users. One that works. This is an important step towards that model, and the one I visualize could even include the best sellers and other new books that our patrons demand.

Not every reader has the means to purchase every book she wants to read. Yet the major ebook vendors are geared towards individual sales, not towards library models.

You can understand the problem: Give a library an ebook, and suddenly no more sales. One naked ebook on a library server could spell doom for its publisher. Enter draconian licenses and digital rights management (DRM) to control the content. And you can just about forget about user privacy. (Feel free to show me I’m wrong here. Certainly in the reader-as-buyer world, identifying information is typically given not only upon purchase, but on each access.)

Yet despite how much sense these newer methods of content control may make for content owners, they don’t work well for content users.

Remember the old days, when copyright was the king, the arbiter of the balance of rights between content owners and users? Copyright law’s “First Sale Doctrine” makes it possible for libraries in the U.S. to loan books that have been legitimately purchased, using either tax dollars or donations.

The delicate balance that is set by copyright between owners and users is kicked aside in the ebook world, and no one that I know has been able to figure out how libraries can get back to the copyright-driven model.

That is, until I saw what the Internet Archive is doing, and it’s exciting.

The Archive now has a “lending library” with a broad range of ebooks.

Privacy

If a user searches for ebooks or downloads free copies, no user-identifiable data is kept. The Internet Archive deletes incoming IP addresses.

To compare the Internet Archive’s privacy policies with other ebook providers, see the Electronic Frontier Foundation’s latest guide to ebook privacy by Cindy Cohen.

Accessibility

Truly exciting inroads are being made on the Accessibility front. Using the DAISY digital format that meets accessibility standards for people who want or need to translate written text to audio, the Internet Archive offers over a million free books. Some are open, and can be read by anyone in the world, on many different devices. The rest are protected and can only be opened using a key issued by the National Library Service for the Blind and Physically Handicapped program of the Library of Congress. For more information, see “Books for people who don’t read print?” at http://openlibrary.org/books/OL6644821M/The_latch_key_of_my_bookhouse/daisy

Copyright

We’re not just talking about public domain books anymore. Don’t get me wrong, I love public domain books, and am just as likely to be happy to be reading a pre-1923 title as a newer one. But let’s face it, public library patrons usually want newer stuff.

So, how does this play out legally? The key is that there are no license terms to wrestle with. That leaves us with copyright and DRM.

Is it legal to copy an entire text and loan it out? Isn’t this similar to the whole Google Books lawsuit, and not-at-all a clear right for the Internet Archive and libraries?

I’d wager that, although it’s by no means spelled out in copyright law, it is legal. Here’s why:

Although no specific exemption in copyright law, not even the “library exemptions” under Section 108 or the “first sale” exemption under Section 109

apply, I believe a truly strong Fair Use case can be made under Section 107.

First, Fair Use applies to both copying and lending any type of materials, so that’s a good springboard to start from.

Purpose: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

The purpose of the scans and the loans in public libraries are for nonprofit educational purposes. In fact, the essential role that public libraries play in society is to use public funds to make information accessible to all. To date, libraries are replete with stories of people who have gotten their education through these open doors.

The importance of loaning materials through libraries is recognized by copyright law and the courts. Take, for example, the famous Williams & Wilkins v. United States case.[1] The Court of Claims ruled in favor of the National Institutes of Health and the National Library of Medicine (NLM) against a copyright infringement claim filed by a medical publisher. The NLM library routinely filled requests for journal articles from other libraries or Government agencies, as well as some requests from commercial organizations. In 1968, the library filled 120,000 requests for single journal articles. The requests were filled by sending out photocopies as “loans” although the copies were actually given to the patron who was free to dispose of it as he or she wished. The Court found the copying was “fair use,” and emphasized the public interest in free access to medical knowledge, and the lack of evidence showing harm to the publishers. In the end, a new section of the copyright law was enacted, explicitly allowing both reproduction and distribution for library users.[2]

In the situation at hand, there is even less harm to publishers, in that the only actual “copies” are evanescent. That is, they disappear from the user’s device at the end of the loan period e.g. two weeks. At that point, the copy returns to the library or is loaned to the next patron in line.

Further, a lesser known provision in the law allows nonprofit libraries to loan computer programs, so long as the software has a copyright warning affixed to the packaging. Libraries are also allowed to transfer possession of a lawfully made copies of software to another nonprofit educational institution, faculty, staff or students. [3]

In our situation, the item (let’s say, a book) could be seen as lawfully transferred temporarily from the library to a library patron. When the library patron has possession, no one else, not even the library, has access.

Nature: (2) the nature of the copyrighted work;

Here, as in the Google Books case, the nature of the work runs the gamut from highly creative such as poetry, to barely protectable works such as mathematical texts.

Amount: (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

As stated in the Williams & Wilkins case, it is an overbroad generalization unsupported by decisions and years of accepted practice to suggest that the copying of an entire copyrighted work, any such work, cannot ever be "fair use." For example, said the court, “We cannot believe, for instance, that a judge who makes and gives to a colleague a photocopy of a law review article, in one of the smaller or less available journals, which bears directly on a problem both judges are then considering in a case before them is infringing the copyright, rather than making "fair use" of his issue of that journal. Similarly with the photocopies of particular newspaper items and articles which are frequently given or sent by one friend to another. There is, in short, no inflexible rule excluding an entire copyrighted work from the area of "fair use." Instead, the extent of the copying is one important factor, but only one, to be taken into account, along with several others.”

In this case, although the entire work is copied, it is an evanescent copy – one that disappears upon a set time period, and precludes the use by more than one user at a time. This, it can be argued, is even less substantial a copy than the “snippets” at issue in the Google Books case. That is, the snippets are available at all times, and in fact, the clever user can piece together substantial portions of snippets for permanent use. Here, the evanescent nature of the copy precludes significant use.

Market Effect:(4) the effect of the use upon the potential market for or value of the copyrighted work.

This is a critical factor. Does the scanning and loaning of evanescent copies harm the market for the publishers? I don’t believe it would be possible to show a serious adverse impact on the current market or the potential market in the future, for such vanishing copies. Only legitimate hardcopies are obtained (i.e. purchased or donated by someone who purchased the hardcopy). The publisher gets the profits from that sale.

Recommended changes to the law

Shayna Muckerheide, a digital copyright student in my San Jose State University School of Library and Information Science, proposes explicit changes to the law. Among her recommendations are to make these amendments:

1) Section 108(f)(4) should remove the second phrase relating to contractual obligations or modify it to exclude contracts related to e-readers and e-books.

Note: There is precendent for such language. Note that copyright law invalidates contract provisions that disallow termination rights. Termination rights are a public policy intiative, written into the law, allowing creators to terminate contracts after specified periods of time. This allows the next great American novelist to regain rights that turn out to be much more valuable over time than they were at the initial contract signing.

2) Section 109(b)(2)(a) should be expanded to include the lending of e-readers, e-books, and their software in nonprofit libraries for nonprofit purposes. Such language should clarify that this is not alterable by contract

[3] This is a part of the First Sale doctrine as codified in Section 109(b)(2)(A). It was included as part of the Computer Software Rental Amendments Act of 1990, which amended First Sale to prohibit the rental, lease or lending of computer programs for director or indirect commercial gain. The specific provision permits nonprofit libraries to lend as an express exception to the new “rental right”. For the Copyright Office’s Report on the Computer Software Rental Amendments Act of 1990: The Nonprofit Library Lending Exemption to the Rental Right, see http://www.copyright.gov/reports/software_ren.html